United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
RICHARD WEBBER SENIOR DISTRICT JUDGE
matter comes before the Court on Defendants Unlimited Cargo
Transport, LLC, Mehmed Spahic, and Elvedin Spahic's
(collectively, “Defendants”) Motion to Dismiss
Plaintiff's Complaint, or Alternatively to Strike and/or
Make Plaintiff's Claims More Definite and Certain [ECF
Kenneth Lemberger initiated this lawsuit by filing a Petition
in in the Circuit Court of St. Louis County. On July 5, 2016,
Defendant Unlimited Cargo Transport, LLC (“UCT”),
removed the Petition to this Court pursuant to 28 U.S.C.
§§§ 1331, 1441 and 1367 [ECF No. 1].
Defendants Mehmed Spahic and Elvedin Spahic consented to the
removal [ECF No. 2]. On the same date, Defendants filed their
pending Motion to Dismiss. Defendant UCT subsequently filed a
Counterclaim against Plaintiff [ECF No. 11]. On August 19,
2016, the Court noted Plaintiff had not yet filed a response
to Defendants' Motion to Dismiss and ordered Plaintiff to
show cause why Defendants' Motion should not be granted.
On September 9, 2016, Plaintiff filed his Memorandum in
Opposition re: Defendants' Motion to Dismiss, his
Response to this Court's order to show cause, and his
motion to dismiss Count I of his Petition without prejudice
[ECF No. 13].
Petition, Plaintiff claims he was employed by Defendants as a
company driver during two separate periods of employment.
Plaintiff alleges each of the Defendants-UCT, Mehmed Spahic
and Elvedin Spahic-were his employers. He further alleges the
Spahics are the owners of UCT and exercised complete dominion
and control over the LLC as its “alter egos.”
Plaintiff asserts four counts-the first two allege violations
of the Fair Labor Standards Act of 1938, 29 U.S.C. 201-219
(the “FLSA”). In Counts I and II, Plaintiff
contends he was paid less than the minimum wage of $7.50 an
hour in violation of the FLSA during his two episodes of
employment with UCT.
Plaintiff's third count, he maintains Defendants failed
to return $1, 000 in escrowed funds to him. Lastly, in Count
IV, Plaintiff alleges Defendants assigned him a defective
truck and he was required to incur $3, 000.00 in repairs.
Plaintiff argues Defendants' provision of the defective
truck violated the warranty set forth in the lease agreement
between the parties. Plaintiff further alleges Defendants
made fraudulent representations that the truck complied with
Federal and State laws.
move to dismiss Plaintiff's complaint or to strike his
improper counts for failure to state a claim upon which
relief can be granted pursuant to Federal Rules of Civil
Procedure (“FRCP”) 12(b)(6) and 12(f).
Specifically, Defendants maintain dismissal is proper with
regard to Counts I and II because Plaintiff failed to state
sufficient facts alleging a violation of the minimum wage
requirement under the FLSA. Defendants argue Plaintiff failed
to plead the number of days and hours he worked or the manner
and amount of compensation he received. Moreover, Defendants
also contend Mehmed Spahic and Elvedin Spahic (the
“Spahic Defendants”) should be dismissed from the
case because Plaintiff failed to adequately plead they were
his employers. In the alternative, should this Court deny
Defendants' Motion to Dismiss or Strike, Defendants
request that Plaintiff be required to make his claims more
definite and certain pursuant to FRCP 12(e).
purpose of this Motion, the Court accepts as true the
following facts alleged in Plaintiff's Petition.
Great Rivers Habitat Alliance v. Fed. Emergency Mgmt.
Agency, 615 F.3d 958, 988 (8th Cir. 2010). Plaintiff
performed services for UCT as a truck driver during two
separate time periods. The first period occurred during 2014.
The second period commenced in March 2015 and ended in
September 2015. On March 20, 2015, Plaintiff entered into an
Independent Contractor Lease Agreement and an Equipment Lease
Agreement with UCT and was assigned a truck. Defendants
unilaterally arranged and booked loads for Plaintiff to
transport and then instructed Plaintiff when and where to
pick up and deliver the loads. Plaintiff was obligated to
accept each load. If Plaintiff failed to pick up a load as
directed, he would be required by Defendants to wait for
another load, which would result in a loss of income to
Plaintiff. Defendants did not permit Plaintiff to work for
other hauling companies. Plaintiff worked 16 hours a day and
was not paid the minimum wage.
FRCP 12(b)(6), a party may move to dismiss a claim for
“failure to state a claim upon which relief can be
granted.” The notice pleading standard of FRCP 8(a)(2)
requires a plaintiff to give “a short and plain
statement showing that the pleader is entitled to
relief.” To meet this standard and to survive a FRCP
12(b)(6) motion to dismiss, “a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations
and citation omitted). This requirement of facial
plausibility means the factual content of the plaintiff's
allegations must “allow the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Cole v. Homier Distrib.
Co., 599 F.3d 856, 861 (8th Cir. 2010) (quoting
Iqbal, 556 U.S. at 678). The Court must grant all
reasonable inferences in favor of the nonmoving party.
Lustgraaf v. Behrens, 619 F.3d 867, 872-73 (8th Cir.
ruling on a motion to dismiss, a court Amust liberally
construe a complaint in favor of the plaintiff[.]@
Huggins v. FedEx Ground Package Sys., Inc., 592 F.3d
853, 862 (8th Cir. 2010). However, if a claim fails to allege
one of the elements necessary to recovery on a legal theory,
that claim must be dismissed for failure to state a claim
upon which relief can be granted. Crest Constr. II, Inc.
v. Doe, 660 F.3d 346, 355 (8th Cir. 2011). AThreadbare
recitals of a cause of action, supported by mere conclusory
statements, do not suffice.@ Iqbal, 556 U.S. at 678;
Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007).
Although courts must accept all factual allegations as true,
they are not bound to take as true Aa legal conclusion
couched as a factual allegation.@ Twombly, 550 U.S.
at 555 (internal quotations and citation omitted);
Iqbal, 556 U.S. at 677-78.
The Spahic Defendants
initial matter, the Court will consider Defendants'
argument that the Spahic Defendants should be dismissed from
the case. Defendants contend Plaintiff did not properly plead
facts establishing the Spahics were his employers as required
under the FLSA. Plaintiff, in turn, counters he sufficiently